(1) On a difference of opinion between Mr. Justice Rajinder Sachar and Ms. Justice Leila Seth, the following point, namely
'THAT the government made a reference, after it had already refused to refer the matter earlier and recorded reasons for the refusal had been communicated to the parties in accordance with the Industrial Disputes Act, without recording reasons or having material before it, the said reference is invalid.'
HAS been referred for my decision. The points on which Sachar J. and Seth J. had agreed and disagreed are pin-pointed in their joint order dated 14th August 1984. The said order reads as under '.
'THE points urged by Dr. A.nand Prakash, learned counsel for the management, were as follows :
1. As the government had communicated its decision dated 1st August 1972 not to make the reference under section 10(1) of the Act it acted in breach of the principles of natural justice to refer the matter for adjudication as per its order dated 16th August 1974 without first having given any opportunity of hearing or making representation against the proposed order of reference. 2. That the government made a reference, after it had already refused to refer the matter earlier and recorded reasons for the refusal had been communicated to the parties in accordance with the Industrial Disputes Act, without recording; reasons or having material before it, the said reference is 3. The Tribunal acted illegally in setting aside the termination of service of the workman. 4. Even if termination of service was validly set aside compensation, and not reinstatement, was the proper relief to be awarded. 5. The Tribunal exceeded its jurisdiction in purporting to award promotional benefits, which is outside the terms of reference.
BOTH of us are agreed as to the conclusion in regard to points 1, 3, 4 and 5. On these findings subject to the modification in point No. 5, the result would be the dismissal of the writ petition.
However, point No. 2, which is a challenge to the jurisdictional competency to make the reference, there is a difference of opinion between us; while Sachar J. holds that there was relevant admissible material on record on the basis of which the Central Government: made the reference as per its order dated 16th August 1974, Leila Seth J. is of the opinion that no reason or material has been shown by the Central Government for the basis of the formation of its opinion to make the reference dated 16th August, 1974, even though malafides had been asserted.
'THE result of Sachar J's. decision would be a dismissal of the petition while the decision of Leila Seth, J. would result in the petition being allowed. As we have differed on point No. 2, it is evident that the matter must be placed before another Judge. He would, thereforee, direct that the papers be placed before Hon'ble the Chief Justice for referring point No. 2 to another Judgs. Only point No. 2 is being referred as on the other four points we are in agreement. As the reference was made over a decade back and the matter relates to the termination of the services of the employee, we feel that the matter should be heard at the earliest.'
(2) Sachar, J. after a detailed discussion on point No. 2. came to the conclusion that he is unable to find any fault with the action of the Government in having made the reference dated 16th August 1974. (The conclusions of the learned Judge are contained at pages 29 to 32 of his judgment). Seth, J. after considering the judgment of Sachar, J. and on a consideration of the record concluded that there was substance in the charge of the petitioner regarding mala fides and arbitrariness. Seth, J. concluded that though no notice of hearing is essential yet the power of revision of review cannot be exercised mala fide, arbitrarily or capriciously. Seth, J. was of the view that before the Government was competen. to review its earlier reasoned order there must be. some reason) material before it to do so. Seth, J. found that the government had failed to show any ground fur reviewing its earlier order and, thereforee, concluded that the order making the reference is invalid. Sachar, J. dismissed the petition leaving the parties to bear their own costs. Seth, J. allowed the petition and quashed the award of the Tribunal leaving the parties to bear their own costs.
(3) The relevant facts are these. The respondent-workman Shri L. R. Singhla was employed as a clerk-cum-typist with the petitioner-bank. The workman was charge sheeted for certain acts of misconduct. The petitioner bank held an inquiry. The inquiry officer found the workman guilty of the charges. On the basis of the findings of the inquiry office' the Staff Superintendent of the petitioner bank by an order dated 10th August 1971 discharged the respondent-workman from the service of the bank. The workman raised a dispute before the Conciliation Officer about the termination of his services. Conciliation proceedings were held but no settlement was arrived at. The Conciliation Officer submitted his report to the government. The Central Government after consideration of the report by its order dated 1st August 1972 refused to refer the 'dispute for adjudication on the ground that the discharge of the workman from the petitioner's service was on the basis of a properly held departmental inquiry and the action of the bank was not malafide. The workman made a representation against the aforesaid refusal to make the reference by the Government. The government on a reconsideration of the matter by an order dated 16th August 1974 referred the dispute for adjudication to the Industrial 936 Tribunal. The order states that the Central Government is of opinion that an industrial dispute exists between the employer in relation to the State Bank of Patiala and their workman in respect of the matter specified in the schedule annexed thereto. The reference made was whether the action of the management of State Bank of Patiala in terminating the services of Shri L. R. Singhla, clerk-cum-typist, State Bank of Patiala, Mohindergarh Branch, with effect from the 14th August 1971 is justified If not, to what relief is he entitled The Industrial Tribunal found that the discharge of the workman from the service was not justified and was illegal and the workman be. reinstated with the continuity of service, full back wages and other benefits including benefit of promotion as if his services were never terminated. The workman was also allowed costs.
(4) I have heard Dr. Anand Prakash on behalf of the petitioner and the workman in person and Shri Chaudhary on behalf of the Union of India and given my careful consideration and thought to the judgments of Sachar, J. and Seth, J. with all respect to Seth, J. I am inclined to agree with the reasoning and conclusion of Sachar, J.
(5) A bald assertion has been made in paras 7 and 14 to the petition that the reference was made under political pressure. The petitioner bank has given no details regarding the alleged political pressure. The workman in the counter affidavit in paras 6 and 7 refuted the allegation of any political pressure. The relevant portion of the reply of the workman reads as under : .The appropriate Government initially declined to exercise its power of reference. The Deponent-respondent and the Union again lime-lighted the facts and record by detailed representations brining home amongst others the aspects of infirmities in the domestic inquiry, illegalities committed by the petitioner-Bank, coupled with the breach of Statutory. 937 Rules and amongst others invited the attention of the Government to the provisions of S. 11-A of the Industrial Disputes Act, 1947 the then recently inserted by the legislature whereby the powers had been conferred on the adjudicator i.e. the Tribunal to go into the validity of the action of the employer and to give appropriate relief as it may think fit. The deponent also laid due emphasis that where the dispute in question raises question of law, as was the case of the deponent it was not for the appropriate Government to decline the reference and that the circumstances warranted the adjudication by the Tribunal as per principle enunciated by the Hon'ble Supreme Court amongst others in the case entitled Bombay Union of Journalists vs . State of Bombay reported in : (1964)ILLJ351SC . The appropriate government on reconsideration of the matter referred the dispute for adjudication, more so in the interest of justice equity and fair-play. It is specifically denied that the reference was made under any political pressure as maliciously and veraciously as alleged by the petitioner-bank. The contention/allegation of the petitioner-Bank is otherwise ill-conceived and against the well settled law that by making the reference the Government does not decide the rights of the parties, all that it does is to exercise administrative power for reference of adjudication where the parties can State their respective cases. As such the Govt. has made the reference validly according to law and so the act of making reference does not involve and/or affects the rights of the parties adversely.'
(6) The Union of India did not file any reply to the writ petition. The judgment of Seth, J. shows that during; the hearing of the petition the counsel for the Union of India was asked 938 to clarify the stand of the government on the allegation regarding the malafides but no reply was filed. Thereafter, the counsel was asked to produce the relevant file and also file reply regarding the allegation of malafides. The court was told that the file has been misplaced and is not traceable. On the failure of the government to produce the file Seth, J. concluded that the government had failed to show the reason that led to its reviewing the earlier order refusing to make the reference.
(7) On the facts and in the circumstances of this case, I am of the view that the above conclusion is not justified. Admittedly, there was in existence at all material time an industrial dispute touching the termination of the services of the workman. The government first on 1st August 1972 refused to refer the dispute for the determination of the Industrial Tribunal but later on, on a reconsideration of the matter made a reference on 16th August 1974. The allegation of the bank is that the reconsideration and the order of reference was under political pressure. I am unable to understand what could be the political pressure in the circumstances of this case. The dispute was between the workman and the State Bank of Patiala. The reference for ad-judicator was by the Central Government. Assuming for the sake of argument that the workman had aired his grievances through some member of the Parliament could it be said that political pressure had been brought on the government. To my mind, airing one's grievances through the President, the Prime Minister or the members of Parliament cannot by any stretch of imagination be said to be bringing political pressure on the government which was under a legal duty to take a decision whether or not to make a reference. By the order of reference, to put in the words of Sachar J. 'no adjudication was made, no rights were affected, no benefits given to the workman, nor any liability imposed or financial restraint put on the management'.
(8) To put it little more forcefully for the workman what political pressure could a clerk-cum-typist could have possibly 939 brought on the Central Government except by knocking at its door by making representations or airing his grievances through constitutionally elected representatives. There is no material at all on the record that the decision to make the reference was under political pressure, or for reasons which were extraneous and not germane. There is material on the record showing that after the Central Government had refused to make the reference in 1972 the workman had made repeated representations to the Labour Minister with copies to the Prime Minister and the Finance Minister. It would be, thereforee, not right to say that there was no reason or material before the Central Government to review its earlier order. The Conciliation' file was summoned by the Industrial Tribunal. The Secretary to the Government of India claimed privilege under section 123 of the Evidence Act regarding the 'notes portions' on the file. The said claim of privilege was allowed by the Tribunal on 4th June 1975. The High Court desired the Central Government to produce the conciliation file in 1984. The High Court was informed that the file has been misplaced and is not traceable. I see no valid reason for attributing any motives in the non production of the file and drawing adverse conclusion against the workman.
(9) Sachar, J. was further of the view that the Central Government in the order of 1st August 1972 while refusing to make the reference had exceeded in its jurisdiction in expressing final opinion on the disputed questions of facts raised before it and which was legally not permissible. Sachar, J. following the decision of the Supreme Court in Bombay Union of Journalists v. State of Bombay, : (1964)ILLJ351SC held that it is well settled 'that on disputed questions of fact the appropriate government cannot purport to reach final conclusions, for that would be the province of the Industrial Tribunal nor could the government purport to reach a final decision on questions of law'. I am in respectful agreement with the above view taken by Sachar, J.
(10) Sachar, J. has discussed all the aspects of the case in great detail and I need not burden the judgment by going into those aspects over again. I am in complete agreement with the reasoning and conclusion of Sachar, J. that there was relevant admissible material on the record On the basis of which the Central Government made the reference as per its order dated 16th August 1974.
(11) The case shall now be placed before the Division Bench comprising of Mr. Justice Rajinder Sachar and Ms. Justice Leila Seth for disposal in accordance with law.